Keystone Pipeline dead? Not so fast!

When President Obama denied a permit for the $7 billion Keystone pipeline project stretching from Canada to Texas, many feared the project was dead – but a Republican lawmaker is preparing to bypass the president altogether and get the pipeline back on track.

H.R. 3548, submitted by Lee Terry, R-Neb., would take the decision out of Obama’s hands and order the Federal Energy Regulatory Commission, or FERC, to issue a permit within 30 days.

Some say the decision never belonged to the president anyway.

According to a March 2011 report by the Congressional Research Service, it was a presidential executive order in 1968 that first laid claim to giving the president authority over cross-border oil infrastructure.

“The executive branch has exercised permitting authority over the construction and operation of ‘pipelines, conveyor belts, and similar facilities for the exportation or importation of petroleum, petroleum products’ and other products at least since the promulgation of Executive Order 11423 in 1968,” according to the report.

The report said no constitutional authority is cited that would give any president this authority normally reserved for Congress.

“Generally, powers exercised by the executive branch are authorized by legislation or are inherent presidential powers based in the Constitution. E.O.,” it states. “11423 makes no mention of any authority.”

In the 1990s, the Sierra Club argued this very point, claiming then-President Clinton lacked authority to issue a permit for another cross-border pipeline, the Alberta Clipper, because E.O. 11423 doesn’t identify where that power originated.

Clinton argued that the president does have authority, if not through executive order, then surely as commander in chief, as well as through a president’s responsibility over foreign affairs.

In the Sierra Club case, a U.S. District court agreed with Clinton, largely due to years of inaction on the part of Congress in assuming control of the process.

“Congress has not attempted to exercise any exclusive authority over the permitting process,” the court said. “Congress’ inaction suggests that Congress has accepted the authority of the president to issue cross-border permits.”

H.R. 3548 aims to change that.

In her Jan. 25 testimony before a House subcommittee on energy regarding H.R. 3548, Assistant Secretary of State Kerri-Ann Jones acknowledged receipt of the permit application for the 1,700-mile pipeline back in 2008.

She said, “A rigorous and transparent process was begun to determine if the pipeline was in the national interest.”

Based on a proposed route change affecting the sand hills of Nebraska, Jones told the committee the process was stopped in November so a new impact study could be launched.

Jones said her department needs until early 2013 to “complete our assessment.”

She then explained that the Temporary Payroll Tax Cut Continuation Act (H.R. 3765) signed by Obama in December contained language requiring a decision within 60-days. Based on a lack of time to conduct further assessment, the secretary of state recommended that the president deny the permit request.

Rep. Terry recently told Nebraska Radio Network Obama’s statement regarding the denial was not what Congress had been told over the course of the last year.

“The president’s statement said they wanted more time, which is contradictory to what they told us in April, May, June, July, and August and September, where they said they had all the information,” he said

“The law [H.R. 3765] signed by the president said he could only deny it [Keystone XL permit] if it’s in the national interest to deny it,” Terry explained. “They did not make any statement of national interest. They just said they needed more time.”

The president’s statement from Jan. 18 says in part:

“As the State Department made clear last month, the rushed and arbitrary deadline insisted on by congressional Republicans prevented a full assessment of the pipeline’s impact, especially the health and safety of the American people, as well as our environment.

“As a result, the secretary of state has recommended that the application be denied. And after reviewing the State Department’s report, I agree.”

Rep. Fred Upton, R-Mich., also spoke at the Jan. 25 hearing and explained that the deadlines both Jones and President Obama referenced were anything but “arbitrary.”

“Last July, the House passed a bill requiring the State Department to make its long-overdue decision on Keystone XL by Nov. 1. It was truly a bipartisan effort, with 47 Democrats joining nearly all Republicans in supporting this reasonable measure,” he said. “The bill probably would have garnered even more votes if not for the administration’s repeated assurances that it is going to make a decision before the end of 2011, and that a legislated deadline is not necessary.

“Unfortunately, as the end of the year approached, the administration reversed position and postponed its decision to 2013 at the earliest.

“In response, Congress gave the president a second chance to do the right thing by providing him another 60 days to approve Keystone XL as part of the payroll tax bill, but last week he decided to reject the project.”

Upton said he supports H.R. 3548 because the “shovel ready” project will create tens of thousands of American jobs, reduce gas prices at the pump and strengthen the nation’s energy security by reliably bringing in oil from “our ally Canada” rather than importing from “far less friendly producers.”

“It is no surprise that so many American’s consider this decision to be a no-brainer,” he said.

Rep. Ed Whitfield, R-Ky., also spoke at the hearing, noting, “The phrase ‘national interest’ should be somewhat simple to understand.”

“If the nation is plagued by persistent unemployment and a private company is willing to spend $7 billion to construct an infrastructure project, putting over 100,000 people to work – that sounds like something that serves the national interest,” he said. “If our president decides that sending aircraft carrier strike groups to the Strait of Hormuz to defend oil flow is in the national interest, then one would also think a pipeline from Canada that would help eliminate our Middle East oil imports also serves the national interest.”

Whitfield added, “Unfortunately, that is not the same conclusion that President Obama reached, stating that they needed more time. Over three years was not enough time. Eleven agencies reviewing the pipeline was not enough review.”

He concluded by reminding the committee of the State Department’s own assessment, that the “no-action” option is the wrong option.

“But I fear that is exactly where we’re headed,” Whitfield said.

With the president nixing the project, the best hope for the pipeline project may be through H.R. 3548, which supporters say has a good chance of passing since there is a Republican majority in the House.

The larger hurdle may be in the Senate, but according to Rep. Terry, “There are a lot of senators, even a majority of senators, in favor of the pipeline.”

Terry added, “Harry Reid has been such a strong-arm blocker for the president – Harry Reid will be the problem on this.”

How Reid and Obama will react to H.R. 3548 remains to be seen.

Fox News reported “liberal donors even threatened to cut off funds to Obama’s re-election campaign to protest the project.”

Also, it has been widely reported that Canadian Prime Minister Stephen Harper is forging ties with China and pushing energy exports to make Canada a global energy “superpower.”